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Petitioner: SERVICE COMMISSION; PESHAWAR VS Respondent: CHAIRMAN, N.W.F.P. PUBLIC SERVICE COMMISSION, PESHAWAR
2002 P L C (C
2002 P L C (C. S.) 1155
[Peshawar High Court]
Before Talaat Qayum Qureshi, and Ijaz‑ul‑Hassan Khan, JJ
MUHAMMAD RAFIQ, SUPTD/ADMIN OFFICER, N.W.F.P. PUBLIC
SERVICE COMMISSION; PESHAWAR
Versus
CHAIRMAN, N.W.F.P. PUBLIC SERVICE COMMISSION, PESHAWAR and another
Writ Petition No. 1242 of 2000, decided on 18th June, 2002
(a) Civil Service‑--
‑‑‑‑Withdrawal of resignation‑‑‑Re‑instatement of Civil servant‑‑‑Resignation voluntarily tendered by Civil Servant serving as Superintendent Public Service Commission, was accepted‑‑‑Civil servant subsequently decided to withdraw his resignation and approached Authority concerned in that respect, but could not succeed‑‑‑Civil Servant approached Services Review Board by filing revision petition which petition was disposed of by the Board with observation that review petition filed by Civil Servant did not fall within purview of recommendatory powers of Board‑‑‑Service Review Board, however, remarked that Provincial Government could consider case of Civil Servant for his reinstatement without any compulsive recommendation from Board‑‑‑Chief Minister ordered reinstatement of Civil Servant, but Chairman Public Service Commission in absence of approval of Governor, was hesitant to implement orders of Chief Minister and allow Civil servant to resume duties‑‑‑Chief Minister, under provisions of North‑West Frontier Province Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulation, 1985 was not competent to pass order regarding reinstatement of civil servant as such authority vested in Governor‑‑‑Chairman Public Service Commission, in circumstances had valid reasons to refuse to take back civil servant in service when no mala fides was spelt out from his action.
Ishfaq Hussain Rana v. Government of Punjab 1993 SCMR 1326 and Dr. Qaimuddin v. Government of N.W.F.P. and 3 others 1995 SCMR 876 ref.
(b) Constitution of Pakistan (1973)‑‑‑
Art. 199‑‑‑Civil Service‑‑‑Delay in tiling Constitutional petition‑‑ Discretionary relief, grant of‑‑‑‑Resignation voluntarily tendered by petitioner/Civil Servant was accepted and Civil Servant subsequently decided to withdraw resignation, but did not succeed‑‑‑Petitioner after acceptance of his resignation slept over his right for a sufficient long period‑‑‑Delay in tiling Constitutional petition which remained unexplained was not without effect on grant of discretionary relief to petitioner under Art.199 of Constitution of Pakistan, 1973 and in such like cases Court would be reluctant to grim discretionary relief.
Kamal Hussain v. M. Sirajul Islam PLD 1969 SC 42 ref.
Qazi Atiq‑ur‑Rehman for Petitioner.
Miss Musarrat Hilali, Addl. A.‑G. for Respondents.
Date of hearing: 7th June. 2002.
JUDGMENT
IJAZ‑UL‑HASSAN KHAN, J.‑‑‑Muhammad Rafiq petitioner, Ex -Superintendent N.W.F.P. Public Service Commission Peshawar has invokes Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, claiming a declaration to the effect that the petitioner having been recommended by the Services Review Board, Peshawar vide order dated 29‑1‑1990 and duly reinstated by the then Chief Minister N.W.F.P. vide his order dated 13‑2‑1994, is entitled to the Pay and Allowances of post and all other benefits of a continuous service since his appointment as Superintendent N.W.F.P. Public Service Commission. The petitioner has also prayed that respondent No. l be directed to treat the petitioner as Public Servant by allowing him all the benefits of service due, until his retirement on attaining the age of superannuation on 2‑6‑2003.
2. Briefly stated the facts are that the petitioner applied for the post of Assistant in the N.W.F.P. Public Service Commission in 1970. The petitioner was selected and appointed as sit Assistant. He continued to serve as such till 1975 when he was promoted and appointed as Superintendent. He, tendered resignation on 13‑3‑1978 which was accepted vide order dated 10‑5‑1978 and communicated to the petitioner vide letter dated 14‑5‑1978. Subsequently the petitioner decided to withdraw his resignation ands approached the higher authorities but his efforts bore no fruit. The petitioner then tiled Review Petition No. 16 of 1989 before the Service Review Board Peshawar which was disposed of with the observation that the scope of interference by this Board is limited to action under M.L.O.17, section 12‑A, section, 13(i) or (ii) of the Civil Servants Act, 1973 and as such this petition does not fall within the purview of the recommendatory powers of this Board. However, it was remarked that as a gesture of goodwill, the provincial Government may reconsider the case of the petitioner for re instatement without any compulsive recommendation from this Board. The grievance of the petitioner is that he approached Chairman N.W.F.P. Public Service Commission, Peshawar, respondent No.1 vide his application dated 25‑3‑2000 for reinstatement but respondent No.1 remained reluctant to honour the law)V1 order of the authority for reasons best known to him.
3. In the comments, the allegations of the petitioner were controverted and it was asserted that the Chief Minister N.W.F.P. was not competent to order reinstatement of the petitioner and the Governor N.W.F.P. had such authority under the N.W.F.P. Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulations, 1985.
4. Qazi Atiq‑ur‑Rehman, Advocate for the petitioner contended with vehemence that the petitioner was made the victim of circumstances and that the case of the petitioner for re‑instatement having been approved and recommended by the then Chief Minister N.W. F.P., respondent No. l had no jurisdiction to keep aside the order and decline to re‑instate the petitioner in service. The learned counsel in order to show that the Chief Minister was the sole authority and not the Governor, placed reliance on Ishfaq Hussain Rana v. Government of Punjab (1993 SCMR 1326) and Dr. Qaimuddin v. Government of N.W.F.P. and 3 others (1995 SCMR 876).
5. In reply Miss Musarrat Hilali, learned Additional Advocate‑General invited our attention to the relevant provisions of N.W.F.P. Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulations, 1985 and submitted that the Chief Minister N.W.F.P. was not competent to pass order regarding re‑instatement of the petitioner and that the authority vests in the Governor N.W.F.P. Peshawar. She also contended that service record of the petitioner is a sad commentary on his work, attitude and behaviour as a responsible person and he was found having contaminated the entire set‑up. Concluding the arguments it was maintained that the petitioner had tendered resignation of his own without any pressure and he was not made victim of excesses due to his political affiliations. The point of delay in approaching the quarter concerned was also agitated.
6. We have heard at length the arguments of learned counsel for the parties and perused the documents annexed with the petition and the judgments cited on behalf of the petitioner.
7. There is no dispute about the fact that the petitioner applied for the post of Assistant in the N.W.F.P. Public Service Commission in 1970. The petitioner was selected and appointed as an Assistant. He was promoted and appointed as Superintendent in 1975. He tendered resignation on 13‑3‑1978 which was accepted vide order dated 10‑5‑1978 and communicated to the petitioner vide letter dated 14‑5‑1978. The petitioner subsequently decide to withdraw his resignation and approached the quarter concerned but his efforts proved futile and ultimately he approached the Service Review Board Peshawar by filing Review Petition No. 16 of 1989 which was disposed of by virtue of order dated 29‑1‑1990 with the observation that petition does not fall within the purview of the recommendatory powers of the Board. However, it was remarked that the Provincial Government may consider the case of the petitioner for re‑instatement without Ay compulsive recommendation from this Board.
8. Under the N.W.F.P. Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulations, 1985, the I Appointing Authority for BPS‑16 is Chairman, N.W.F.P. Public Service Commission. In case of Commission the Government is the authority for deciding the cases of appointment/promotion for the employees in the N.W.F.P. Public Service Commission and not the Chief Minister. In the present case, it appears that in the absence of approval of the Governor, respondent No. l was hesitant to implement the orders of Chief Minister and allow the petitioner to resume duties.
9. Learned counsel for the petitioner contended with force that the petitioner had an unblemished record of service and he was subjected to victimization for no other reason but on account of his refusal to abide by the wishes of his superiors which compelled the petitioner to tender resignation. Conversely it was urged that the petition was not a willing worker and he tendered resignation voluntarily and without any compulsion. The resignation was duly processed in S & GAD and accepted by the Provincial Government. His representation/appeals were duly considered in consonance with the well‑known and understood principles recongized by law. The submissions of the learned State counsel carry weight.
10. A perusal of the record would reveal that after acceptance of the resignation the petitioner slept over his rights for a sufficient long period and did not bother to approach the quarter concerned. Delay in the filing of the petition which remains unexplained is also not without effect on the grant of discretionary relief under Article 199 of the Constitution. In such‑like situation Courts of law are always reluctant to grant discretionary relief. If an authority is needed on the point reference can be made to the case of Kama1 Hussain v. M. Sirajul Islam reported in PLD 1969 SC 42.
11. Adverting to judgments cited on behalf of petitioner 1993 SCMR 1326 and 1995 SCMR 876, we find that the same are distinguishable and have no bearing on the facts of the present case. These rulings are of no help to the petitioners.
12. In view of what has gone above it follows that respondent No. 1 had valid reasons to refuse to take back the petitioner in service and no mala fide is spelt out of his action attracting the extraordinary Constitutional jurisdiction of this Court. The petition is not maintainable. The same is hereby dismissed with no order as to costs.
H.B.T./539/P Petition dismissed.